CASE NO.: CC 19/2010

IN THE HIGH COURT OF NAMIBIA HELD AT OSHAKATI
In the matter between:
THE STATE
and

JAMEN PETRUS GAOSEB JOAHASEL GAMASEB

Heard on:       February 22 - 23, 2011. 
Delivered on: February 25, 2011.

SENTENCE

[3] Both the accused gave evidence in mitigation, without calling any witnesses.

[4] The personal circumstances of first accused are the following: Although unable to state his exact age, he said he was twenty-one years of age when arrested in 2005. That would currently make him about twenty-six years of age. He is not married and fathered a daughter, now five years old, who lives with his mother in Otavi. Prior to his arrest, accused used to contribute towards the maintenance of his child by buying milk and clothing; a responsibility now fully lying with his mother, who is employed. It would appear that she also supports the child's biological mother. He is illiterate and never received any formal education. He was employed by the deceased where he had been working for only two-and-a-half months and earned N$220 per fortnight. He resigned one day before the incident took place in which the deceased got killed, and explained his resignation by saying that the deceased deducted monies from his salary, which she was not entitled to do. This he said, was the reason why he returned to the farm the following day in order to steal the money she had earlier refused to give him. He was unable to explain why he did not instead file a complaint with the Labour Commissioner; other than saying that he did not think of that at the time. He further said that he felt very bad for having caused the death of the deceased and that the incident haunts him in his dreams. He otherwise enjoys good health. Accused has been in custody since his arrest on 16 October 2005; a period of five years and four months. Before this incident, he had not brushed shoulders with the law.

[5] Second accused was unable to state his age, but confirmed that he was an adult. He is single and without dependants. His formal education went as far as grade three when he dropped out of school because his school fees remained unpaid. He had also worked for the deceased for just over two months (prior to accused no.1 taking up employment with the deceased) and voluntarily terminated his services. Second accused thereafter did some casual work elsewhere, but, on the date of the incident, he was unemployed. He thereafter became financially dependent on his mother, whose house he was staying in at the time, in Otavi. He equally felt very bad about the deceased's death, which, to him, came unexpected. He explained that, although he had no earlier quarrel with the deceased over money, he decided to go with first accused, hoping that he would share in the money they planned on stealing. The N$4-80 actually stolen was spent on cigarettes. From the remaining stolen items, he took curtains, duvet covers and bed-sheets. The firearm, he said, remained with accused no. 1, who did not indicate to him what he intended doing with it. Second accused is also a first offender and remained in custody since their arrest.

[8] That they planned their actions in advance is evident from the facts: They decided to enter the house at night when they knew the deceased would be asleep; both knowing the set-up at the house and how they could easily gain forced entry into the house because of their previous employment with the deceased; they knew she was living on the farm alone; and therefore prepared themselves by taking along tools, such as a screwdriver and knife, in order to achieve their aims. The planning of a crime is generally regarded to be an aggravating factor, and in the present case, there is sufficient evidence to find that the accused planned their actions well in advance.

[9] Both crimes committed are viewed in a serious light by the courts, and where these share common ground, I take the following into consideration: From their earlier employment on the farm, both were familiar with the circumstances on the farm and, it is also from this prior knowledge, that they knew they could gain access to the house through the window in the store room where the burglar bars were widely spaced to readily allow access for someone to pass through when breaking the windowpane. They knew that the deceased was living alone and given her advanced age, she was particularly vulnerable. This much was conceded by their counsel.

[10] Turning to the crime and the circumstances in which it was committed, it is noted that the deceased was attacked in the sanctity of her home. She was surprised in bed and stood no chance against the accused persons. In these circumstances, if the accused meant no harm to the person of the deceased (as they claimed), they could simply have locked her up in one of the rooms without injuring her in any way; temporarily incapacitating her. She was a frail and sickly, elderly person; subjected to an assault which fractured some of her ribs and during which assault she sustained injuries on her head and neck. The latter injuries are not viewed to be of serious nature. A garment was tightly tied around the head, covering her mouth and nose, probably preventing her from breathing properly. She was further securely trussed up to such an extent that she probably was unable to move any of her limbs and remained in that position until she died. She must have been in extreme pain and agony before she died. She was helpless and defenceless and had to pay with her life; only so that the accused persons could rob her of a handgun, N$4-80 in cash, and goods only of sentimental value to the family i.e. linen. Judging from the photographs forming part of the photo plan handed in as exhibit during the trial, depicting the manner in which the deceased was lying in when found the following day, one can only describe that scene as undignified -something no person should be subjected to.

[13] Crimes such as murder, rape, robbery and housebreaking are all serious crimes. The sanctity of life expressed by the Constitution must be protected and the only way in which this Court could make a contribution to that end, is by meting out appropriate and suitable punishment. Courts will certainly fail in its duty, should it not impose severe punishment in deserving cases; thereby sending a clear message to society, to the accused in particular, and al would-be offenders, who may consider committing crimes of this nature. Given the grave escalation of crimes of violence committed lately against the most vulnerable in society like the elder; women and young children, the deterrent aspect of sentencing and deterrence, as one of the objectives of punishment, must be emphasised. There is a general outcry from the public for protection against criminals and it is more often than not reported in the media, that aggrieved members of society have taken to the streets to protest their dissatisfaction against criminals in society who show no respect for life and the rights of others. I am alive to the fact that the courts should not give in to public expectation - which is not synonymous with public interest - because, what the public may perceive as being fair and just, may not, necessarily, be in its best interest; neither in the interest of justice.

[15] That would not only bring hardship to the accused persons who, most probably, would spend the greater part of their productive life behind bars; but also to their families, especially the child of first accused, who will grow up without a father figure in her life. For the moment this child is cared for by her grandmother and the child's biological mother; however, things might chance for the worse in future as it would appear that they are mainly dependent on his mother's income. Regrettably, one cannot allow one's sympathy for the family to deter one from imposing the kind of sentence dictated by the interests of justice and society.

[16] The accused have been in custody awaiting trial for five years and four months. It is trite that the period an accused spends in custody awaiting trial, especially if it islengthy, is a factor which normally leads to a reduction in sentence. That would obviously apply to this case.

[17] Where the accused is sentenced in respect of two or more related offences - like murder and robbery - the accepted practice is that the court, in sentencing, should have regard to the cumulative effect of the sentences imposed, in order to ensure that the totality of the sentence is not disproportionate to the moral blameworthiness of the offences, for which the accused stands to be sentenced.

Count 1 - Murder: 27 years imprisonment.
Count 2 - Housebreaking with intent to rob and robbery, with aggravating circumstances: 15 years imprisonment.
In terms of s 280 of Act 51 of 1977 it is ordered that 7 years of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1.

LIEBENBERG, J

ON BEHALF OF THE ACCUSED 				Mr. S. Skakumu

Instructed by:							 Directorate: Legal Aid

ON BEHALF OF THE STATE				 Mr. D. Lisulo

Instructed by:						Office of the Prosecutor-General